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The Supreme Court of British Columbia rules on an interlocutory injunction relating to industrial activities on a First Nation’s traditional territory

On May 31st, 2017, the Supreme Court of British Columbia, in Yahey v. British Columbia, dismissed the application for an interlocutory injunction of the Blueberry River First Nations (“Blueberry River”), enjoining the Province of British Columbia (“Province”) from authorizing further industrial development in parts of its traditional territory.

Background

In an underlying action commenced in 2015, Blueberry River, a signatory of Treaty 8, alleges that the province has breached its rights under this treaty by allowing industrial development activities —mainly oil and gas development, processing, transportation and logging — in its traditional territory. More specifically, it asserts that the effects of these industrial activities constitute an infringement of Blueberry River’s “meaningful right to hunt in territories over which they traditionally hunted, fished and trapped.” In this context, and pending a decision on the merits of its underlying action, Blueberry River sought to prevent the province from authorizing further industrial development in certain “critical areas” of its traditional territory that were of particular importance, by means of an interlocutory injunction.[1]

The decision of the Supreme Court of British Columbia

For an injunction to be granted in British Columbia, the applicant must: (1) satisfy the Court that there is a fair question to be tried, and (2) establish that the balance of convenience favours the granting of the injunction.[2]

Serious question

The Court stated that the question at trial would be to determine if the cumulative effect of all industrial development in the Blueberry River’s traditional territory has become so extensive that it amounts to a breach of rights guaranteed by Treaty 8. The Court had no doubt that this constituted a serious question.

Balance of convenience

To determine if the balance of convenience favoured an injunction, the Court needed to weigh the harm that would be suffered by Blueberry River if the injunction was denied against the harm that would be suffered by the Province if the injunction was granted. It also needed to take into account the possible adverse effects on third parties as well as the preservation of the status quo.

To do so, the Court first needed to determine if Blueberry River had established that an irreparable harm (i.e. a harm that cannot be monetarily quantified) would result from the denial of the injunction. To this effect, the Court took into account various affidavits of members of Blueberry River stating how these industrial activities affected their traditional way of hunting as well as their particular relation with the land and the wildlife population. Even though expert evidence as to the impacts of these industrial activities on this particular territory was contradictory and deficient, the Court found that for the purposes of this application, the affidavits of the members were sufficient to establish that the “critical areas” identified were of unique cultural importance and that the industrial activities had detrimental effects on treaty rights, thus resulting in irreparable harm.

This irreparable harm, however, needed to be weighed with other factors in order to determine which party would suffer the greater harm from the granting or the denying of the injunction. The Court considered numerous affidavits filed by the province and came to the conclusion that the granting of the injunction would cause economic harm to the province through loss of revenues. It also considered affidavits from third parties, mainly oil and gas and forestry industries, stating the negative impacts that would be caused to their operations. Finally, the Court found that the injunction, as formulated by Blueberry River, lacked clarity and would not only affect future industrial activities in the “critical areas,” as it claimed, but also pre-existing projects as well as projects outside of the identified areas. The injunction sought was therefore too broad to be justified under the balance of convenience.

In light of these conclusions, the Court dismissed the application of Blueberry River even though it had established the existence of a serious question and of irreparable harm. The Court encouraged the parties to pursue a collaborative path pending trial, insisting on the importance of consultation and accommodation as a means to resolution.

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